Citation Nr: 1315820 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 10-47 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for flat feet. 2. Entitlement to service connection for arthritis of the feet. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for a mid to upper back disability. 5. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD), prior to November 1, 2011. 6. Entitlement to a higher rating for PTSD, currently evaluated as 70 percent disabling. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from June 2005 and March 2006 and May 2006 to May 2007, including combat service in Iraq, and his decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran testified at a videoconference hearing before an Acting Veterans Law Judge (AVLJ). A transcript of that hearing has been associated with the claims file. The Board acknowledges that the AVLJ who presided over that hearing is no longer with the Board. In February 2013, VA attempted to contact the Veteran by mail to inquire whether he desired a new hearing or wished to proceed with his appeal. The letter was sent to the most recent address of record for the Veteran, but was returned undeliverable. The Veteran is responsible for keeping VA apprised of his whereabouts. If he does not do so, "there is no burden on the part of the VA to turn up heaven and earth to find him." Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Without the Veteran keeping VA apprised of his current address, VA is not held responsible for communications that are returned undeliverable. Therefore, the Board will proceed to decide the case on the merits. The Board remanded the case for further development in September 2011 to obtain new VA examinations regarding the Veteran's PTSD, feet, and spine. The Board requested nexus opinions regarding the relationship between service and any current foot or back disability. The examinations and nexus opinions were provided in November 2011 with an addendum opinion regarding the feet dated October 2012. Therefore, a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The issues of service connection for arthritis of the feet, service connection for flat feet, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's lumbosacral strain and cervical strain are etiologically related to the Veteran's combat service. 2. The Veteran's PTSD manifests with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation, near-continuous depression, irritability, anger, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. 3. The preponderance of the evidence shows that the Veteran's PTSD is not productive of total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for lumbosacral strain have been met. 38 U.S.C.A. §§ 1110, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. The criteria for entitlement to service connection for cervical strain have been met. 38 U.S.C.A. §§ 1110, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 3. Effective November 25, 2009, the criteria for an initial rating of 70 percent, and no more, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In this decision, the Board grants service connection for lumbosacral and cervical strain. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary regarding those issues. The appeal for a higher initial rating for PTSD arises from a disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA regarding that issue. Service Connection - Laws and Regulations Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Further, in this case, the Veteran served in combat in Iraq. In cases where, as here, a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. § 3.304(d) (2012), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection - Back Disability Although the service treatment records are negative, the Veteran reports that he injured his back during an explosion and while serving as a gunner and attributes the onset of his back disability to his combat service in Iraq. The Veteran was afforded a VA examination in January 2010. The examiner noted the Veteran's complaints of low back and mid-back pain that he relates to his carrying heavy weight while on patrols, and being banged and bounced around inside the turret as a gunner. Additionally, he claimed he fell off a roof, a height of about 15 feet. He noted an ache in his back that causes him to miss or be late for school about twice per month. The examiner diagnosed low back and mid back strain. He did not provide an etiology opinion. In November 2011, the Veteran was afforded a VA examination of the low back. The examiner diagnosed lumbosacral strain. The Veteran reported a history of painful upper back and low back pain since he was in service. The examiner determined that as service medical records are non-contributory for any spinal condition in service and the Veteran's current lumbosacral spine as well as cervical spine conditions are still rather mild, he's not able to provide any opinion on the relation to military service without resorting to mere speculation. In November 2011, the Veteran was also afforded a VA examination of the neck. The examiner diagnosed cervical strain. The Veteran again reported a history of painful upper back and low back pain since he was in service. The examiner noted the same opinion as for the lumbosacral spine. The Veteran served in combat and his statements and sworn testimony indicate that he injured his low back and cervical spine while serving in combat in Iraq, and indeed there is a lay statement submitted by a fellow serviceman who corroborates this account. Moreover, the injuries are consistent with the circumstances, conditions and hardships of his Iraq combat service. 38 U.S.C.A. § 1154(b). As such, VA must presume the occurrence of the in-service low back and cervical spine injuries. In addition, the medical evidence shows that he has been diagnosed as having low back and cervical spine disability and he reports the onset of the conditions during combat service in Iraq. Further, the Board finds that he is both competent to report having low back and neck problems since serving in combat in Iraq and that his account of having these conditions since that time is credible. Thus, the Board finds that the evidence is not sufficient to rebut the presumption that his low back and cervical spine disabilities became manifest during his combat service. See Reeves. In light of his in-service, combat-related injuries, the credible history of low back and cervical spine problems in and since service, and the diagnoses of lumbosacral and cervical strains, the Board finds that service connection for these disabilities is warranted because they had its onset in service. Higher Initial Rating - Laws and Regulations Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In any claim for a higher rating, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Higher Initial Rating - PTSD The Veteran's service-connected PTSD is currently rated at 50 percent under Diagnostic Code (DC) 9411. Under the rating criteria for mental disorders, the current 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships. A 100 percent rating is provided for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). A GAF of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). A GAF of 41-50 indicates serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 31-40 indicates some impairment in reality testing or communication (e.g. speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g. depressed man avoids friends, neglects family, and is unable to work). A GAF of 21-30 indicates behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g. sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g. stays in bed all day; no job, home, or friends.) American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV) (Fourth Edition); see 38 C.F.R. § 4.130 (2007). The Veteran received private psychiatric treatment from July 2007 to October 2009. The examiner noted a lack of desire to do anything, insomnia, nightmares, and extreme anger. He provided a GAF score of 50-55. The Veteran noted school was easy and his grades were good without trying. The Veteran reported to the VA emergency department in September 2009 after an episode of panic. He reported depression, anhedonia, poor sleep, decreased appetite, paranoid ideation, and auditory hallucinations. He reports recurrent flashbacks most days with hypervigilance. The examiner diagnosed PTSD and provided a GAF of 30. Subsequently in September 2009, the examiner diagnosed anxiety, NOS, and provided a GAF of 50/85. In October 2009, the Veteran reported past suicidal ideation, which has been both passive and active in nature, but active ideation has been triggered by in-the-moment cues and subsides quickly. In November 2009, the Veteran was diagnosed with PTSD again and provided a GAF score of 45-50. In January 2010, the Veteran's GAF was 60. The Veteran remained in treatment with the VA psychiatrist through September 2010, when he began treatment with the school psychiatrist. In December 2009, the Veteran was afforded a VA examination. The examiner described the Veteran as extremely symptomatic. He experienced frequent flashbacks and had dissociative reactions. He noted an ongoing sleep disorder, with nightmares and bad dreams. The Veteran has an extremely heightened startle response to any unexpected noise, movement, or activity. He remains extremely hypervigilant. The Veteran became extremely upset at any stimuli that evoked memories of his experiences in Iraq. He is increasingly isolative and extremely irritable. He has a history of conflict with his supervisors. He reported attention and concentration deficits, including during the examination. The Veteran's mood and affect were rather intense. His speech was normal with no evidence of perceptual impairment or thought disorder. Thought content was appropriate. He has engaged in past suicidal ideation and has asked his roommate to take his firearms and observe him to prevent suicide. He was oriented and his memory and concentration were relatively intact. His abstract reasoning, judgment, impulse control, and insight are all intact. The Veteran maintains full independence with regard to all activities of daily living. The examiner noted moderate-to-severe symptoms of PTSD. The examiner assigned a GAF score of 47. The Veteran's symptoms result in occupational and social impairment with reduced reliability and productivity as a consequence of his isolation, impaired sleep, heightened arousal, social and recreational avoidance, flashbacks, mood swings, and memory and concentration deficits. During the May 2011 Board hearing, the Veteran noted a suicide attempt in 2009. He also noted bad family relations, anger blackouts, and trouble concentrating. In October 2011, the Veteran's social worker provided a clinical narrative. She noted hypervigilance, catastrophic thinking, night terrors, difficulty concentrating, and irritability. The Veteran's GAF score was 52. The Veteran was afforded a new VA examination in November 2011. The Veteran was diagnosed with PTSD and assigned a GAF of 47. The examiner noted that the Veteran has occupational and social impairment with reduced reliability and productivity. The Veteran's symptoms include depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation weekly, and impaired impulse control. Prior to November 1, 2011, the Veteran's PTSD is rated at 50 percent disabling and at 70 percent after November 1, 2011. The evidence supports an initial evaluation of 70 percent, but no more, for the Veteran's PTSD throughout the entire period on appeal. The level of occupational and social impairment due to a psychiatric disorder is the primary consideration in determining the severity of a psychiatric disorder for VA purposes and not all the symptoms listed in the rating criteria must be present in order for a rating to be warranted. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding that the psychiatric symptoms listed in the rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings). First, the Veteran's GAF scores must be assessed. The GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health - illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). A GAF score is highly probative, as it relates directly to the veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). Here, the Veteran's GAF scores were noted as ranging from 30 to 60. These indicated moderate to extremely serious symptoms and would support a 70 percent evaluation. The scores do not, however, necessarily mandate a 100 percent evaluation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). A review of the Veteran's reported symptoms indicates that a 70 percent, but not 100 percent, evaluation is most appropriate. The evidence shows deficiencies in mood, work, family relations, and school, due to symptoms such as insomnia, nightmares, depression, suicidal ideation, and extreme anger and irritability. The record shows a history of unprovoked bouts of anger. But the evidence does not demonstrate total social and occupational impairment. The Veteran is isolated, but does maintain a relationship with his family and had a serious girlfriend for several years. The Veteran is currently unemployed but the evidence demonstrates that there is not total social impairment as the Veteran continues to attend class and function in a school setting. Additionally, the Veteran is able to perform his activities of daily living. He is consistently found to be properly dressed, groomed, and oriented. His perception and thought content are consistently normal, and he has shown little difficulty in activities of daily living. While the Veteran has reported suicidal ideation at times, he has no intent to follow through with the thoughts and knows to seek help when these ideations appear. He has never been disorientated to time or place and he has never shown memory loss for names of close relatives, own occupation, or his own name. Consequently, the Board finds that a 70 percent schedular rating, but no higher, is warranted throughout the entire period on appeal. Extraschedular Consideration The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2012). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The schedular ratings in this case are adequate for the Veteran's PTSD. In this case, the Board finds that the rating criteria contemplate the Veteran's PTSD because it rates the condition based on his occupational (and social) impairment, i.e., manifestations that are contemplated in the rating criteria. The diagnostic criteria also adequately describe the severity and symptomatology of the Veteran's disability. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. ORDER Service connection for lumbosacral strain is granted. Service connection for cervical strain is granted. Effective November 25, 2009, an initial disability rating of 70 percent for PTSD is granted, Subject to the law and regulations governing payment of monetary benefits. An initial rating in excess of 70 percent for PTSD is denied. REMAND As noted above, where, as here, the Veteran served in combat, if he asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Federal Circuit has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran has testified that heavy backs and gear with continuous physical exercise while wearing combat boots has lead to flat feet and osteoarthritis of the feet. On the October 2004 entrance report of medical examination showed normal feet with a normal arch. On his November 2005 separation report of medical examination, the examiner noted abnormal feet. He diagnosed moderate asymptomatic pes planus. On the November 2005 report of medical history, the Veteran noted no arthritis, rheumatism, or bursitis. He also noted no foot trouble, to include pain, corns, bunions, or other problems. Post-active service, the Veteran noted diminishing arches bilaterally on an April 2009 period health assessment. He was referred to podiatry. He received a VA examination in December 2009. The examiner did not address flat feet, noting that this was not an examination for flatfoot. The examiner diagnosed plantar fasciitis, posterior tibial tendonitis, and osteoarthritis. He did not provide a nexus opinion. The Veteran was provided with another VA examination in November 2011. Despite the findings of moderate asymptomatic pes planus on the November 2005 separation examination and the treatment note of diminishing arches in April 2009, the VA examiner did not fill out the disability benefits questionnaire regarding flatfeet. He simply noted that based on claims file review and physical examination, there is no evidence of any problems with flat feet. In the examination for foot disabilities other than flat feet, the examiner noted a history of painful bilateral feet since he was in service. The examiner noted that the feet were checked out on the separation exam in 2005, but no details were given. He also noted complaints of diminished arches in 2009 with no findings. The examiner diagnosed plantar fasciitis. He opined that even though no significant descriptions of the details of the Veteran's feet condition were found in service medical records, as the Veteran now has evidence of plantar fasciitis, it is at least as likely as not service-connected. In October 2012, the AMC requested that the VA examiner provide a rationale as to why the claimed foot condition is service-connected. The claims file was provided to another examiner to provide such a rationale. The examiner noted the Veteran's medical history, but did not note the findings of pes planus at separation from service. The examiner provided a contradictory opinion noting that it is less likely than not that the Veteran's plantar fasciitis was incurred in, aggravated by, or a result of his time in active service. The examiner noted no clinical evidence of any foot problems during his time in service, nor any clinical records establishing an evening, injury, or disease during service or immediate after service. The examiner noted that the Veteran complained that the balls of his feet hurt while stationed in Iraq. She opined that this is insufficient for his claimed foot disability because the anatomical position of pain is inconsistent with plantar fasciitis. The examiner noted that the pain he reported was related to the metatarsal heads or forefoot and therefore consistent with a diagnosis of metatarsalgia. Plantar fasciitis is medial or lateral longitudinal arch pain. The examiner also noted that the pain in the balls of his feet may be assumed as transient because there was no documentation in his active duty records or expressed in his visits to VA. The Board finds that a new examination and opinion is necessary to address the conflicting and incomplete opinions provided by the VA examiners. One examiner notes that the Veteran's plantar fasciitis began in service, but cites no rationale. Another examiner determined that it was not related to service and provided a rationale, however that rationale relied heavily on the lack of documented complaints and the limitation of complaints to the balls of the feet. The Veteran is competent to testify to foot pain without documented evidence and he has not limited the pain to the balls of his feet. Additionally, despite evidence of pes planus at separation from service, the VA examiners note no pes planus. The record is also conflicting as to whether the Veteran has osteoarthritis of the feet, with one VA examination providing a diagnosis and another noting no arthritis. Due to the significantly conflicting evidence, the Board finds that a new VA examination is necessary before a decision on the merits may be made. Additionally, the Veteran's lay statements, as well as VA treatment records, have at times indicated that the Veteran is unable to work due to his service-connected disabilities, specifically due to his PTSD. Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations"); See also Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that an appeal for higher rating includes a claim for TDIU, if reasonably raised by the record). In light of the Court's determination that evidence of unemployability in the context of a rating claim may include a TDIU claim, the Board finds that remand of the issue of TDIU for development by the RO, specifically to provide an examination to determine whether the Veteran is capable of obtaining and maintaining employment, is the appropriate action. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service foot symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. After associating all pertinent outstanding records with the claims file, schedule the Veteran for a VA examination regarding his feet. The examiner must acknowledge and discuss the Veteran's combat service in Iraq, and all indicated testing should be accomplished. The examiner should review the claims file and address the following questions: a.) Does the Veteran currently, or did he at any time during the course of this appeal, have a diagnosis of pes planus? If so, is it at least as likely as not that the pes planus had its onset during or was caused by service. The examiner should specifically address the separation examination noting moderate asymptomatic pes planus and the 2009 complaint of diminishing arches. b.) Does the Veteran currently, or did he at any time during the course of the appeal, have a diagnosis of osteoarthritis of the feet? If so, is it at least as likely as not that the osteoarthritis had its onset in Iraq or was caused by service. The examiner should specifically address the December 2009 diagnosis of osteoarthritis. c.) Is it at least as likely as not that the Veteran's diagnosed plantar fasciitis had its onset during or was causally related to service. The examiner should address the Veteran's history of complaints of foot pain. The examiner should ask the Veteran for a specific history regarding his foot pain, specifically the location of the pain. The examiner should also note the conflicting opinions provided by the November 2011 and October 2012 examiners. All findings and conclusions should be set forth in a legible report. 3. After determining whether service connection is warranted for the feet, schedule the Veteran for a VA examination, to be conducted, if possible, by a vocational specialist, for the purpose of ascertaining the impact of the Veteran's service-connected disabilities on his ability to obtain and maintain substantially gainful employment. The examiner should review the claims file and address the following issues: a.) The VA examiner is requested to evaluate and discuss the impact of the Veteran's service-connected disabilities, specifically PTSD, tinnitus, lumbosacral strain, cervical strain, and residuals of traumatic brain injury, on the Veteran's employability. (Should service connection for the feet be granted prior to this evaluation, any service-connected foot disability should also be considered.) b.) The VA examiner is requested to offer an opinion as to whether the Veteran's service-connected disabilities, without consideration of his age or non-service- connected disabilities, render him unable to secure or maintain a substantially gainful occupation. c.) If it is the examiner's opinion that the Veteran's service-connected disabilities do not render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his service-connected disabilities, given his skill set and educational background. 4. Then, readjudicate the appeal. In doing so, the RO must specifically consider 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d). If the benefits sought on appeal are not granted, issue the Veteran and his representative a supplemental statement of the case and provide the veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs